REAL ESTATE SALE AND PURCHASE AGREEMENT
EXHIBIT
10.24
THIS
REAL
ESTATE SALE AND PURCHASE AGREEMENT (this "Agreement")
is
dated as of September 19, 2006 (the "Effective
Date"),
by
and between CENTRAL FREIGHT LINES, INC., a Texas corporation ("Seller"),
and
SOUTHWEST PREMIER PROPERTIES, L.L.C., a Texas limited liability company
("Buyer").
IN
CONSIDERATION of the respective agreements of the parties made herein, and
other
good and valuable consideration, the receipt and sufficiency of which hereby
are
acknowledged, Seller and Buyer agree as follows:
1. Property
Included in Sale.
Seller
hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to purchase
from Seller, subject to the terms and conditions set forth herein, the
following:
(a) that
certain real property located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, being
more particularly described in Exhibit A
attached
hereto (each such parcel of real property being referred to herein as a
"Parcel"
and
collectively being referred to as the "Real
Property");
(b) except
as
may otherwise be noted on any one or more of the Parcel descriptions on
Exhibit
A,
all
rights, privileges, and easements appurtenant to the Real Property, including,
without limitation, all minerals, oil, gas, and other hydrocarbon and other
substances on and under the Real Property, as well as all development rights,
air rights, water, water rights, riparian rights, and water stock relating
to
the Real Property, and any rights-of-way or other appurtenances used in
connection with the beneficial use and enjoyment of the Real Property
(collectively, the "Appurtenances");
and
(c) all
of
Seller's right, title, and interest in and to all improvements and fixtures
located on the Real Property, including, without limitation, buildings and
structures presently located on the Real Property, all apparatus, equipment
and
appliances used in connection with the operation or occupancy of the Real
Property, such as heating and air conditioning systems and facilities used
to
provide any utility, refrigeration, ventilation, garbage disposal, or other
services on the Real Property (collectively, the "Improvements").
All
of
the items referred to in subparagraphs (a), (b), and (c) above are
collectively referred to as the "Property."
2. Purchase
Price.
(a) Subject
to Section 2(c) below, the purchase price for the Property shall be Seven
Hundred Thousand and No/100 Dollars ($700,000.00) (the "Purchase
Price").
(b) The
Purchase Price shall be paid to Seller in cash by wire transfer of immediately
available funds on the date of the closing of this Agreement (the "Closing").
(c) Within
thirty (30) days after the Closing, Seller shall retain a duly qualified and
independent appraiser reasonably acceptable to Buyer in order to prepare an
appraisal of the fair market value of the Property. The costs of such appraisal
shall be paid by Seller. If the fair market value of the Property as determined
by such appraisal is more than five percent (5.0%) greater than the Purchase
Price, then Buyer shall pay to Seller promptly following receipt of the
appraisal an amount equal to the difference between the appraised fair market
value and the Purchase Price. If the fair market value of the Property as
determined by such appraisal is more than five percent (5.0%) less than the
Purchase Price, then Seller shall pay to Buyer promptly following receipt of
the
appraisal an amount equal to the difference between the Purchase Price and
the
appraised fair market value. Any payment pursuant to this Section 2(c) shall
be
made in cash by wire transfer of immediately available funds.
3. Title
to the Property; Lease Agreement.
(a) At
the
Closing, Seller shall convey to Buyer fee simple title to the Real Property,
the
Appurtenances, and the Improvements, by a duly executed and acknowledged
warranty deed in a form reasonably acceptable to Buyer (the "Deed").
(b) At
the
Closing, Buyer and Seller shall enter into a Lease Agreement with respect to
the
Real Property substantially in the form attached hereto as Exhibit B
(the
"Lease
Agreement").
4. Closing.
(a) The
Closing shall occur on or before September 19, 2006 (the
"Closing
Date"),
or
such other date as is agreed upon in writing by Buyer and Seller.
(b) At
or
before the Closing, Seller shall deliver to Buyer the following:
(i) the
duly executed and
acknowledged Deed;
(ii)
a duly
executed counterpart to the Lease Agreement; and
(iii) such
other documents and information as Buyer may reasonably request as necessary
to
consummate the purchase and sale contemplated by this Agreement.
(c) At
or
before the Closing, Buyer shall deliver to Seller the following:
(i) the
Purchase Price;
(ii) a
duly
executed counterpart to the Lease Agreement; and
(iii) such
other documents and information as Seller may reasonably request as necessary
to
consummate the purchase and sale contemplated by this Agreement.
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(d) The
following are to be apportioned as of the Closing Date, as follows:
(i) Real
Estate Taxes and Special Assessments.
General
real estate taxes payable for the tax year prior to the tax year in which the
Closing occurs and all prior years shall be paid by Seller. General real estate
taxes payable for the tax year in which the Closing occurs and for subsequent
years shall be paid in accordance with the terms of the Lease
Agreement.
(ii) Closing
Costs.
Seller
shall pay for any fees or penalties associated with the release of any lien
or
encumbrance created or suffered by Seller with respect to the Property and
the
cost of any transfer taxes and documentary stamp taxes applicable to the sale
of
the Property. Buyer shall pay for the cost of obtaining or updating a prior
survey, the premium for any title insurance requested by Buyer, endorsements,
title examination charges, the cost of recording the Deed and all other
recording fees.
(iii) Survival.
The
provisions of this Section 4(d) shall survive the Closing.
5. Representations,
Warranties and Covenants of Seller.
(a) Seller
hereby represents and warrants to and covenants with Buyer as follows:
(i) Seller
has the good and valid right to convey the Property to Buyer without the joinder
or approval of any other person or entity whatsoever.
(ii) To
Seller's actual knowledge, there is no litigation pending against Seller that
arises out of the ownership of the Property or any Parcel. Seller shall notify
Buyer promptly of any such litigation of which Seller becomes
aware.
(iii) Seller
has never filed or been the subject of any filing of a petition under the
federal bankruptcy law or any federal or state insolvency laws or laws for
composition of indebtedness or for the reorganization of debtors.
(iv) There
is
no pending condemnation or similar proceeding or action affecting the Property
or any part thereof, and Seller has received no notice nor has any knowledge
that any such proceeding is pending or contemplated.
(v) Except
for that certain mortgage and deed of trust in favor of Bank of America,
N.A.,
as agent, which will be released as soon as practicable following Closing,
no
leases, liens, mortgages, deeds of trust, security agreements, or other
encumbrances have been created by, through, or under Seller with respect
to the
Property or any Parcel.
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(vi) Seller
has not heretofore and shall not devise, transfer, assign, or otherwise convey
the Property or any portion thereof to any other person prior to the Closing
Date.
(vii) Neither
the entering into this Agreement nor the consummation of the transactions
contemplated herein will cause a violation or breach by Seller of any contracts,
agreements, or instruments to which Seller is a party or by which Seller or
any
of the Property is bound
(b) Buyer
shall acquire the Property "AS IS, WHERE IS" without any obligation of Seller,
except as expressly set forth herein to the contrary, to perform any repairs,
improvements, maintenance, or other work to the Property or any part thereof,
and without, except as expressly set forth herein to the contrary, any
warranties, express or implied, of any kind from Seller, including, but not
limited to, warranties of fitness, merchantability, fitness for a particular
purpose, habitability, tenantability, or environmental condition. Seller
expressly disclaims any representations and warranties with respect to the
Property, except as specifically set forth in this Agreement, and Buyer does
hereby acknowledge that, in purchasing the Property, Buyer is relying only
upon
those representations of Seller concerning the Property expressly set forth
as
such in this Agreement and in the Deed.
(c) Seller
will refrain from taking any action which could cause any of the foregoing
representations or warranties or covenants and agreements of Seller to become
incorrect or untrue at any time from the Effective Date through the Closing.
Seller shall be deemed to have reaffirmed the representations and warranties
contained in this Section 5 at Closing. In the event that Seller or Buyer learns
that any of said representations or warranties becomes inaccurate between the
Effective Date and the Closing Date, Seller or Buyer shall immediately notify
the other party of such change. Seller shall then use its good faith efforts
to
cure such change within thirty (30) days after giving or receiving notice
thereof as required herein. The Closing Date shall be automatically extended
in
order to allow the running of said thirty (30) day period. In the event Seller
so cures such change within said thirty (30) day period, this Agreement shall
remain in full force and effect. If Seller is unable to cure such change, Buyer
may either (a) terminate this Agreement with respect to the Parcel affected
such
the failure by giving written notice to Seller and the parties shall have no
further rights or obligations hereunder with respect to such Parcel, except
for
those rights or obligations which expressly survive such termination, or (b)
waive such right to terminate and proceed with the transaction pursuant to
the
remaining terms and conditions of this Agreement. In the event Buyer elects
option (b) in the preceding sentence or in the event Buyer elects to close
with
the actual knowledge that a representation or warranty of Seller herein is
untrue or incorrect, the representations and warranties shall be deemed to
be
automatically amended to reflect said change. If Buyer receives notice prior
to
Closing that any of Seller's representations and warranties are untrue, and
(i)
Seller has not cured said breach as provided for herein; and (ii) Buyer elects
to waive said breach and proceed with the purchase and sale of the Property
or
Parcel, then, unless Seller shall have otherwise agreed in writing, Buyer shall
be deemed to have waived any claim for breach of such untrue representation
or
warranty. The representations and warranties contained in this Section 5 shall
not survive Closing.
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6. Risk
of Loss.
If any
of the Property or a Parcel is damaged or destroyed prior to the Closing Date,
and such damage or destruction (a) is fully covered by Seller's insurance,
except for the deductible amounts thereunder, and the insurer agrees to timely
pay for the entire cost of such repair, and (b) would cost less than Five
Thousand Dollars ($5,000.00) to repair or restore, then this Agreement shall
remain in full force and effect and Buyer shall acquire the Property or Parcel
upon the terms and conditions set forth herein. In such event, Buyer shall
receive a credit against the Purchase Price equal to such deductible amount,
and
Seller shall assign to Buyer all of Seller's right, title, and interest in
and
to all proceeds of insurance on account of such damage or destruction. If any
of
the Property or a Parcel is damaged or destroyed prior to the Closing Date,
and
such damage or destruction (c) is not fully covered by Seller's insurance,
other than the deductible amounts, and (d) would cost less than Five
Thousand Dollars ($5,000) to repair or restore, then the transaction
contemplated by this Agreement shall be consummated with Buyer receiving a
credit against the Purchase Price at the Closing in an amount reasonably
determined by Seller and Buyer (after consultation with unaffiliated experts)
to
be the cost of repairing such damage or destruction, but in no event more than
Five Thousand Dollars ($5,000). If (e) any Parcel is damaged or destroyed
prior to the Closing, and the cost of repair would exceed Five Thousand Dollars
($5,000), or (f) condemnation proceedings are commenced against any of the
Property, then, notwithstanding anything to the contrary set forth in this
Section 6, Buyer shall have the right, at its election, either to terminate
this Agreement with respect to the affected Parcel or to not terminate this
Agreement and purchase the Parcel. Buyer shall have thirty (30) days after
Seller notifies Buyer that an event described in clause (e) or (f) has
occurred to make such election by delivery to Seller of an election notice
(the
"Election
Notice").
Buyer's failure to deliver the Election Notice within such thirty (30) day
period shall be deemed an election to terminate this Agreement. If this
Agreement is terminated by delivery of notice of termination to Seller, then
Buyer and Seller shall each be released from all obligations hereunder. If
Buyer
elects not to terminate this Agreement, this Agreement shall remain in full
force and effect and the conveyance of the Property herein, less any interest
taken by eminent domain, condemnation or sale in-lieu thereof, shall be
consummated with no further adjustments, including any adjustments set forth
in
Section 2.
7. Possession.
Subject
to the terms of the Lease Agreement, possession of the Property shall be
delivered to Buyer on the Closing Date.
8. Buyer's
Consent to Contracts and Leases Affecting the Property.
Seller
shall not, after the Effective Date, enter into any new leases or contracts,
or
any assignments or amendments thereof, or waive any rights of Seller under
any
contract, without in each case obtaining Buyer's prior written consent thereto
(which consent may be given or denied in Buyer's sole discretion).
9. Miscellaneous.
(a) Notices.
Any
notice, consent or approval required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been given upon
(i) hand delivery, (ii) one (1) business day after being
deposited with Federal Express or another reliable overnight courier service,
(iii) the same day if transmitted by facsimile telecopy before 5:00 p.m.
Eastern
time, or (iv) two (2) business days after being deposited in the
United States mail,
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registered
or certified mail, postage prepaid, return receipt required, and addressed
to
the party at such addresses as is set forth below or such other address as
either party may from time to time specify in writing to the other.
(b) Brokers
and Finders.
Each
party represents and warrants to the other that no broker or finder was
instrumental in arranging or bringing about this transaction and that there
are
no claims or rights for brokerage commissions or finder's fees in connection
with the transactions contemplated by this Agreement. In the event that any
other broker or finder perfects a claim for commission or finder's fee based
upon such contact, dealings or communication, the party through whom such other
broker or finder makes a claim shall indemnify, save harmless and defend the
other party from said claim and all costs and expenses (including reasonable
attorneys' fees) incurred by the other party in defending against the same.
The
provisions of this Section 9(b) shall survive the Closing.
(c) Successors
and Assigns.
This
Agreement shall be binding upon, and inure to the benefit of, the parties hereto
and their respective successors, heirs, administrators and assigns. Except
as
expressly provided for herein, Buyer shall not assign any of Buyer's rights
hereunder or any part thereof to any person, firm, partnership, corporation
or
other entity without Seller's prior written consent, which Seller may withhold
in its sole and absolute discretion.
(d) Amendments.
Except
as otherwise provided herein, this Agreement may be amended or modified only
by
a written instrument executed by Seller and Buyer.
(e) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Arizona without regard to its conflicts of laws
principles.
(f) Merger
of Prior Agreements.
This
Agreement and the exhibits hereto constitute the entire agreement between the
parties and supersede all prior agreements and understandings between the
parties relating to the subject matter hereof.
(g) Enforcement.
If
either party hereto fails to perform any of its obligations under this Agreement
or if a dispute arises between the parties hereto concerning the meaning or
interpretation of any provision of this Agreement, then the defaulting party
or
the party not prevailing in such dispute shall pay any and all costs and
expenses incurred by the other party on account of such default and/or in
enforcing or establishing its rights hereunder, including, without limitation,
court costs and attorneys' fees and disbursements. Any such attorneys' fees
and
other expenses incurred by either party in enforcing a judgment in its favor
under this Agreement shall be recoverable separately from and in addition to
any
other amount included in such judgment, and such attorneys' fees obligation
is
intended to be severable from the other provisions of this Agreement and to
survive and not be merged into any such judgment.
(h) Time
of the Essence.
Time is
of the essence of this Agreement.
(i) Severability.
If any
provision of this Agreement, or the application thereof to any person, place,
or
circumstance, shall be held by a court of competent jurisdiction to be
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invalid,
unenforceable or void, the remainder of this Agreement and such provisions
as
applied to other persons, places and circumstances shall remain in full force
and effect.
(j) Counterparts.
This
Agreement may be signed in counterparts and all counterparts so executed shall
constitute one contract, binding on all parties hereto, even though all parties
are not signatory to the same counterpart.
(k) Consent
by NATL and Green.
If and
to the extent the terms of this Agreement would be inconsistent with or
otherwise require the consent of North American Truck Lines, LLC, a Nevada
limited liability company ("NATL")
or
Green Acquisition Company, a Nevada corporation ("Green"),
pursuant to that certain Agreement and Plan of Merger by and among Central
Freight Lines, Inc., a Nevada corporation and the parent of Seller (the
"Parent"),
NATL,
and Green, dated January 30, 2006 (as amended, the "Merger
Agreement"),
such
violation or inconsistency is waived and this Agreement is consented to, and
the
execution and performance of this Agreement by the Seller shall not be deemed
to
be a violation of the Merger Agreement by the Parent.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
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SELLER:
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CENTRAL
FREIGHT LINES, INC.
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
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Name:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |
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Title:
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President and Chief Executive Officer | |
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Notice
Address:
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Central
Freight Lines, Inc.
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Attn:
President
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▇▇▇▇▇
▇. ▇▇▇▇ ▇▇.
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▇▇▇▇▇
▇▇▇
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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BUYER:
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SOUTHWEST
PREMIER PROPERTIES, L.L.C.
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
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Name:
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▇▇▇▇▇ ▇▇▇▇▇ | |
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Title:
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Manager | |
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Notice
Address:
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Southwest
Premier Properties, L.L.C.
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c/o
▇▇▇▇ ▇▇▇▇▇▇▇, Swift Aviation Group, Inc.
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▇.▇.
▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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For
the purposes of Section 9(k) only:
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NORTH
AMERICAN TRUCK LINES, LLC
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By:
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Name:
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Title:
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GREEN
ACQUISITION COMPANY
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By:
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Name:
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Title:
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